Citation Nr: 1530083
Decision Date: 07/14/15 Archive Date: 07/21/15
DOCKET NO. 07-34 778A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon
THE ISSUE
Entitlement to service connection for a left shoulder disorder, claimed as secondary to a service-connected right shoulder disability.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Evan M. Deichert, Counsel
INTRODUCTION
The Veteran served on active duty from June 1966 to May 1970.
This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2003 rating decision of the Portland, Oregon, Regional Office (RO) of the Department of Veterans Affairs (VA).
This claim has a long history before the Board. The Board previously remanded this claim in both October 2009 and August 2011. In an April 2013 decision, the Board denied both the claim on appeal as well as the claim for entitlement to service connection for a disability of the arms and hands.
In an April 2014 Joint Motion for Remand, the parties noted that the Veteran was not appealing the denial of the arms and hands issue. That Joint Motion, however, vacated the Board's decision with respect to the left shoulder disability issue, finding that VA had not satisfied its duty to assist by providing the Veteran with an adequate medical examination or opinion.
In compliance with the Joint Motion, the Board then remanded the Veteran's claim in October 2014. The case has now returned to the Board. For reasons described in greater detail below, the Board concludes that its previous remand directives have been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998).
FINDING OF FACT
The Veteran's current left shoulder disability is not proximately due to, the result of, or aggravated by his service-connected right shoulder disability.
CONCLUSION OF LAW
The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2014).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duties to Notify and to Assist
VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014).
An April 2011 letter satisfied the duty to notify provisions, including providing information on how claims for secondary service connection may be substantiated. Although the notice was provided after the initial decision, the claim was properly readjudicated after the notice, most recently in a January 2015 supplemental statement of the case, thus curing any timing-of-notice defect.
VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c).
The Veteran's service treatment and personnel records have been obtained. Post-service VA treatment records have also been obtained. The Veteran has not identified any relevant, outstanding private treatment records. VA sought any medical records possessed by the Social Security Administration; in April 2011, that agency responded that it had no records. There is no indication that, since that time, the Veteran has sought SSA disability benefits.
The Veteran was provided VA medical examinations in February 2003 and February 2010, and addendum opinions regarding the etiology of the Veteran's left shoulder disability were obtained in March 2011 and September 2011.
In its April 2013 decision, the Board determined that these examinations and opinions were adequate for rating purposes, and that the duty to assist had therefore been met. In the April 2014 Joint Motion for Remand that vacated the Board's decision, however, the parties stated:
to the extent that the March 2011 and September 2011 VA addendums do not clearly articulate whether there is any additional disability as the result of aggravation of the appellant's non-service-connected left shoulder disability by his service-connected right shoulder disability under 38 C.F.R. § 3.310(a), the Board should have determined that the VA opinion with addendums was not adequate and remanded the matter for clarification of the examiner's opinion. On remand the Board should seek clarification of the examiner s opinion on the issue of aggravation.
The parties in the Joint Motion did not take exception to the sufficiency or adequacy of the examinations and opinions as they pertain to the Veteran's current diagnoses, to direct service connection, or to secondary service connection not based on aggravation. The Board shall not readdress those issues.
Instead, in an effort to satisfy the terms of the Joint Motion, the Board remanded the claim in October 2014 in order that clarification be provided regarding the issue of aggravation; VA obtained such an opinion in January 2015, and the Board finds this addendum opinion to be adequate. This opinion is based upon consideration of the Veteran's prior medical history and examinations, describes the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contains a reasoned explanation. Further, the examiner responded to the direct question posed by the Board, so there is substantial compliance with the Board's October 2014 remand instructions. D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).
For the foregoing reasons, VA's duty to assist has been met and the Veteran is not prejudiced by the Board's adjudication of the issue on appeal.
Entitlement to Service Connection
Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).
To establish direct service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
Service connection may also be granted for disabilities which are secondary to already service-connected disabilities. 38 C.F.R. § 3.310. Service connection is warranted for disabilities that are proximately due to or the result of a service-connected disease or injury, or for an increase in any disease or injury that is proximately due to or the result of a service-connected disease or injury. Id.
Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises and statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).
Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau, 492 F.3d at 1377. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77.
In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant.
Whether the Veteran currently suffers from a left shoulder disability has never been at issue (the evidence has consistently shown that he is diagnosed as suffering from impingement syndrome). Additionally, the Veteran has specifically stated that he did not suffer from a left shoulder disability during service, and that his current disability results from his overuse of his left shoulder in compensation for his service-connected right shoulder disability. The Veteran's claim has been denied at both the RO and Board level because the competent evidence of record did not show that the Veteran's left shoulder disability is proximately due to, the result of, or aggravated by his service-connected right shoulder disability.
As noted above, the Joint Motion specifically remanded the case to the Board in order that the Board could seek clarification of the examiner's opinion regarding aggravation; as it did not discuss or disturb the Board's findings regarding direct service connection and secondary service connection not based on aggravation, the Board shall not dwell on these issues.
The Board does note, however, that to the extent that the Joint Motion did not limit the Board's responsibilities herein, there has been no additional evidence or argument regarding other theories of service connection that would affect the Board's previous findings and conclusions. In summary, a review of all of the evidence shows that, despite the Veteran's current left shoulder diagnosis, there is no competent evidence that this disability is proximately due to or the result of his service-connected right shoulder disability.
Turning specifically to aggravation, the January 2015 addendum opinion concluded that, after a review of the Veteran's claims file, "it is less likely than not that the Veteran's left shoulder condition is permanently aggravated beyond its natural progression by his s/c right shoulder condition." The examiner stated that the Veteran's left shoulder disability had its onset "many decades" after his right shoulder disability, and that there is thus "no clinical nexus of aggravation." He also noted that the Veteran's left shoulder disability "has required minimal to no treatment," so it "therefore has not been aggravated beyond its expected course."
There is no other medical evidence establishing that the Veteran's current left shoulder disability is aggravated by his service-connected right shoulder disability. To the extent that March 2011 and September 2011 opinions did not rule out this possibility (each opinion stated that it could not "identify significant aggravation" of the Veteran's left shoulder pathology), the parties in the Joint Motion concluded that these opinions were not adequate.
The only evidence in support of the Veteran's claim is his own arguments. For instance, in his June 2004 notice of disagreement, the Veteran argued that his current left shoulder disability resulted from overuse required by not being able to use his service-connected right shoulder. In his November 2007 substantive appeal, the Veteran contended that, since his service-connected right shoulder is weaker than his left, "this could cause the opposite shoulder to begin to deteriorate as well."
Despite the Veteran's assertions, his contentions are not considered competent evidence sufficient to support a grant of service connection. Determining the etiology of the Veteran's left shoulder disability and its possible relationship to a service-connected disability requires medical knowledge or training and is not susceptible to lay opinion. Jandreau, 492 F.3d at 1377. Because the Veteran is not shown to possess such knowledge or training, his opinion cannot be considered competent evidence.
In summary, the preponderance of the evidence is against the claim for service connection for a left shoulder disability; there is no doubt to be resolved; and service connection for a left shoulder disability is not warranted.
ORDER
Service connection for a left shoulder disability, claimed as secondary to a service-connected right shoulder disability, is denied.
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JOHN H. NILON
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs